Social

In his marvelous study, Inherently Unequal: The Betrayal of Equal Rights By the Supreme Court, 1865-1903, author Lawrence Goldstone describes how the ruling in the Civil Rights Cases, 109 U.S. 3 (1883), “helped usher in a period of de jure racial discrimination that would last almost a century and was virtually as odious as slavery itself.” But the quality of mercy still dropped from the Court for the “oppressed.” As Goldstone observed:

During the 1870s and 1880s, the Supreme Court had narrowed both the scope of the Fourteenth Amendment and the federal government’s powers to enforce its provisions, all on the altar of federalism, the Tenth Amendment, and the states’ right of ‘police power’. After the ruling in the Civil Rights Cases, the amendment would have virtually no real application in the lives of African-Americans. But by no means would the Fourteenth Amendment fade into oblivion as a constitutional anachronism. Rather, the amendment, particularly its notion of due process, would be given new life by the justices, not as was originally intended, in the protection of the rights of freedmen, but in the affairs of members of that new oppressed class, the American corporation. Beginning almost at the moment the Court decided that the Fourteenth Amendment must give way to the Tenth in cases involving the rights of African-Americans, they began, without a touch of disquiet, to take precisely the opposite view in cases where states attempted to use this newly expanded police power to regulate the activities of businesses, particularly railroads.”